ARCP Rule 4: Process: General and miscellaneous provisions

Alabama Rules of Civil Procedure

II. Commencement of action; service of process, pleadings, motions, and orders

Rule 4. Process: General and miscellaneous provisions

(a) Summons or other process.

(1) ISSUANCE. Upon the filing of the complaint, or other document required to be served in the manner of an original complaint, the clerk shall forthwith issue the required summons or other process for service upon each defendant. Upon request of the plaintiff separate or additional summons shall issue at any time against any defendant.

(2) FORM. The summons, or other process or each of them in cases involving multiple defendants, shall be signed by the clerk, contain the name of the court and the name of the first party on each side with an appropriate indication of other parties in cases involving multiple parties, be directed to the defendant or each defendant in cases involving multiple defendants, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that, in case of the defendant’s failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint.

(3) COPY OF COMPLAINT OR OTHER DOCUMENT. A copy of the complaint, showing the case number assigned to the action, or other document to be served shall accompany each summons or other process. The plaintiff shall furnish the clerk with sufficient copies of the complaint or other document to be served. Copies are not required if the complaint or other document is filed electronically.

(4) PLAINTIFF AND DEFENDANT DEFINED. For the purpose of issuance and service of summons or other process, “plaintiff” shall include any party seeking the issuance of service of summons, and “defendant” shall include any party upon whom service of summons or other process is sought.

(5) INSTRUCTIONS AND FORM. The plaintiff shall furnish the clerk with instructions for service of the complaint or other document and, when requested by the clerk, the plaintiff shall also furnish sufficient properly completed copies of the summons or other process. When the plaintiff has requested the clerk to issue service by certified mail, the plaintiff, at the request of the clerk, shall also furnish properly completed postal forms necessary for such service.

(b) Time limit for service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative, after at least fourteen (14) days’ notice to the plaintiff, may dismiss the action without prejudice as to the defendant upon whom service was not made or direct that service be effected within a specified time; provided, however, that if the plaintiff shows good cause for the failure to serve the defendant, the court shall extend the time for service for an appropriate period. This subdivision does not apply to fictitious-party practice pursuant to Rule 9(h) or to service in a foreign country.

(c) Upon whom process served. Service of process, except service by publication as provided in Rule 4.3, shall be made as follows:

(1) INDIVIDUAL. Upon an individual, other than a minor or an incompetent person, by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process;

(2) MINOR. Upon a minor by serving any one of the following: the father, the mother, the guardian, the individual having care of the minor or with whom the minor lives, or the spouse, if the minor is married, and, if the minor is over the age of twelve (12) years, by also serving the minor personally;

(3) INCOMPETENT NOT CONFINED. Upon an incompetent person not confined by serving the incompetent and that person’s guardian but, if no guardian has been appointed, by serving the incompetent and a person with whom the incompetent lives or a person who cares for the incompetent;

(4) INCOMPETENT CONFINED. Upon an incompetent person not having a guardian and confined in any institution for the mentally ill or mentally deficient, by serving the superintendent of the institution or similar official or person having the responsibility for custody of the incompetent person;

(5) INCARCERATED PERSON. Upon an individual incarcerated in any penal institution or detention facility within this state, by serving the individual, except that when the individual to be served is a minor, by serving any one of the following: the father, the mother, the guardian, the individual having care of the minor, or the spouse, if the minor is married, and, if the minor is over the age of twelve (12) years, by also serving the minor personally;

(6) CORPORATIONS AND OTHER ENTITIES. Upon a domestic or foreign corporation or upon a partnership, limited partnership, limited liability partnership, limited liability company, or unincorporated organization or association, by serving an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.

(7) STATE. Upon this state or any one of its departments, agencies, offices, or institutions, by serving the officer responsible for the administration of the department, agency, office, or institution, and by serving the attorney general of this state;

(8) LOCAL GOVERNMENTS AND OTHER GOVERNMENTAL ENTITIES. Upon a county, municipal corporation, or any other governmental entity not previously mentioned, or an agency thereof, by serving the chief executive officer or the clerk, or other person designated by appointment or by statute to receive service of process, or upon the attorney general of the state if such service is accompanied by an affidavit of a party or the party’s attorney that all such persons described herein are unknown or cannot be located.

(d) Amendment. The court, within its discretion and upon such terms as are just, may at any time allow or approve the amendment of any process or proof of service thereof, unless the amendment would cause material prejudice to the substantial rights of the party against whom the process was issued.

(e) Service refused. If service of process is refused, and the certified mail receipt or the return of the person serving process states that service of process has been refused, the clerk shall send by ordinary mail a copy of the summons or other process and complaint or other document to be served to the defendant at the address set forth in the complaint or other document to be served. Service shall be deemed complete when the fact of mailing is entered of record.

(f) Multiple defendants; incomplete service; dismissal of fictitious defendants. When there are multiple defendants and the summons (or other document to be served) and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment. After the entry of judgment, if the plaintiff is able to obtain service on a defendant or defendants not previously served (except, however, defendants designated as fictitious parties as allowed by Rule 9(h), who shall be deemed to have been dismissed voluntarily when the case was announced ready for trial against other defendants sued by their true names), the court shall hear and determine the matter as to such defendant or defendants in the same manner as if such defendant or defendants had originally been brought into court, but such defendant or defendants shall be allowed the benefit of any payment or satisfaction that may have been made on the judgment previously entered in the action.

(g) Effect of availability of alternative or dual modes of service of process. There shall be no objection to the service of process or notice to litigants, that two or more modes of service of notice are provided by law or under these rules, but service of notice perfected in any one manner or mode that is provided for by law or under these rules shall be deemed sufficient, notwithstanding that other modes or manner of service and notice are provided by law or under these rules.

(h) Acceptance or waiver of service. A defendant may accept or waive service of process.

(i) Methods of service. Service under this rule shall include the following:

(1) DELIVERY BY A PROCESS SERVER.

(A) By sheriff or constable. When process issued from any court subject to the provisions of these rules is to be delivered personally within this state, the clerk of the court shall deliver or mail the process and sufficient copies of the process and complaint, or other documents to be served, to the sheriff or constable of the county in which the party to be served resides or may be found.

(B) By designated person. As an alternative to delivery by the sheriff, or when process is to be delivered personally outside this state, process issuing from any court governed by these rules may be served by any person not less than eighteen (18) years of age, who is not a party.

(C) How served and returned. The person serving process shall locate the person to be served and shall deliver a copy of the process and accompanying documents to the person to be served. When the copy of the process has been delivered, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the docket sheet relating to the action. The return shall clearly indicate the name, address, and telephone number of the person serving process. The return of the person serving process in the manner described herein shall be prima facie evidence that process has been served.

(D) Failure of service. When the person serving process is unable to serve a copy of the process within thirty (30) days, the person serving process shall endorse that fact and the reason therefor on the process and return the process and copies to the clerk, who shall make the appropriate entry on the docket sheet of the action. In the event of failure of service, the clerk shall forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the party at whose instance process was issued. The clerk shall enter the fact of notification on the docket sheet of the action. Failure to make service within the thirty-(30-)day period and failure to make proof of service do not affect the validity of service.

(2) SERVICE BY CERTIFIED MAIL.

(A) When proper. When the plaintiff files a written request with the clerk for service by certified mail, service of process shall be made by that method. Alternatively, the attorney or party filing the process and complaint may initiate service by certified mail as provided in this rule.

(B) How served. (i) In the event of service by certified mail by the clerk, the clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The case number of the case in which the pleading has been filed shall be included on the return receipt. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received.

(ii) Alternatively, the attorney or party filing the process and complaint or other document to be served may obtain a copy of the filed pleading from the clerk or, if the pleading was filed electronically, use the copy returned electronically by the clerk. The attorney or party shall then place that copy of the process and complaint or other document to be served in an envelope and address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision. The attorney or party shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The return receipt shall be addressed to the clerk of the court issuing the process and shall identify the case number of the case in which the pleading has been filed. Upon mailing, the attorney or party shall immediately file with the court an “Affidavit of Certified Mailing of Process and Complaint.” That affidavit shall verify that a filed copy of the process and complaint or other document to be served has been mailed by certified mail in accordance with this rule.

(C) When effective. Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee’s agent as evidenced by signature on the return receipt. Within the meaning of this subdivision, “agent” means a person or entity specifically authorized by the addressee to receive the addressee’s mail and to deliver that mail to the addressee. Such agent’s authority shall be conclusively established when the addressee acknowledges actual receipt of the summons and complaint or the court determines that the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default. An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within time to avoid a default. In the case of an entity included in one of the provisions of Rule 4(c), “defendant,” within the meaning of this subdivision, shall be such a person described in the applicable subdivision of 4(c).

(D) Failure of delivery. If the receipt shows failure of delivery to the addressee or the addressee’s agent, the clerk shall follow the notification procedure set forth in subdivision (i)(1)(D) of this rule. Failure to make service within the thirty-(30-)day period and failure to make proof of service do not affect the validity of service.

Rule 4(f) is amended so as to harmonize its provisions with those portions of Rule 54(b) which withhold finality to judgments against fewer than all parties. Thus, in the event of a judgment against all defendants who have been served, the judgment shall be deemed final notwithstanding the provisions of Rule 54(b). See Ford Motor Credit Co. v. Carmichael, 383 So.2d 539 (Ala.1980) for a contrary result under Rules 4 and 54 prior to the proposal of this revision.

The September 1, 1987, amendment to Rule 4(f) added the parenthetical clause dealing with fictitious parties. This change is intended to work a dismissal of fictitious defendants when a case is announced ready for trial and thereby to avoid the application of Rule 4(f) to fictitious defendants. Under this revision the announcement of a case as ready for trial operates as a dismissal of all fictitious defendants. This amendment also made some nonsubstantive changes to clarify the language of the section.

Court Comment to June 20, 1989, Amendment to Rule 4(f)

This amendment made one change. In the first sentence, the phrase “the plaintiff may proceed to trial and judgment” was amended to omit the words “trial and.”

Committee Comments to August 1, 1992, Amendment to Rule 4(c)(1)

The August 1, 1992, revision to Rule 4(c)(1) permits service upon an individual by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an authorized agent. Likewise, the amendment to Rule 4.1(c)(3) renders service by certified mail effective from the date of delivery to the named addressee or to his agent. The purpose of both these changes is to simplify service requirements under Alabama law and to facilitate service of process. While Alabama law is not yet as liberal as the Federal Rules of Civil Procedure in this area, the August 1, 1992, amendments move Alabama closer to that position. The committee notes that courts should be vigilant to protect the rights of defendants when default judgments are entered on the basis of service upon an agent of the defendant. On motion to set aside a default or on motion for relief from a default, where service has been attempted on a person alleged to be or purporting to be an agent, no presumption of agency should be indulged in with respect to such service and the court should be satisfied that the person upon whom service was attempted was in fact the authorized agent of the defendant before refusing to grant relief from a default judgment.

Subdivision (a) is unchanged, except that the copy of the complaint to be served shall show the case number assigned to the action.

Subdivision (b) is new to Alabama. It is borrowed from Fed.R.Civ.P. 4(m). The text is taken from the federal rule, except for the provisions for 14 days’ notice and for fictitious-party practice. Former 4(b) is now 4.2(a).

Subdivision (c). Former subdivisions (6)-(9) are combined into a new subdivision (6). The former provision allowing corporations and other business entities to be served by certified mail at any of their usual places of business has been eliminated. Now, personal or certified mail service must be directed to the registered or appointed agent or to a specific person, such as an “officer.” Subdivision (6) is patterned on Rule 4(d)(5), Ark.R.Civ.P., and Fed.R.Civ.P. 4(h)(1). The phrase “managing or general agent” is used in a majority of the states and has been interpreted in many federal cases. The intent is to adopt the majority rule of federal caselaw in interpreting the phrase “managing or general agent.” Former subdivisions (11)-(13) are combined into a new subdivision (8), which governs service on all types of local governmental entities. New subdivision (8) is patterned after Rule 4(d)(7), Ark.R.Civ.P., and Rule 1-004 F. (4) through (5), N.M.R.Civ.P.

Subdivision (d) is unchanged.

Subdivision (e) is unchanged.

Subdivision (f) is unchanged.

Subdivision (g) is unchanged.

Subdivision (h) as amended deletes the former provisions allowing the defendant’s attorney to accept or waive service and requiring the acceptance or waiver to be in writing and to be signed by the defendant and a credible witness.

Subdivision (i) includes provisions that were formerly in Rule 4.1. Subdivision 4(i)(1)(B) eliminates the requirement for a court order to designate a person, other than the sheriff, as a private process server. Former 4.1(b)(2) required a court order to designate, prior to service, a specific person to be a private process server. Subdivision 4(i)(1)(C) requires the return to show the name, address, and telephone number of the person serving process. New 4(i)(2)(C) provides greater detail as to who signs for receipt of certified mail. If the defendant is an entity, such as a corporation within Rule 4(c)(6), the “addressee” will have to be a person defined in that rule, such as an “officer” or a “managing agent.” An “agent” of the addressee may validly receive and sign for the certified mail, if that “agent” is a person specifically authorized by the addressee to receive the addressee’s mail. For example, an officer of a corporate defendant would be a proper “addressee” for serving the corporation by certified mail, and that officer could have designated a secretary or mail clerk to be the person who regularly receives the officer’s mail. That secretary or mail clerk would be a proper “agent” to sign the receipt for certified mail addressed to the officer. Also, new 4(i)(2)(C) provides that no action shall be dismissed for improper service if the defendant actually received the summons and complaint in time to avoid a default. For a corporate defendant, a “defendant” with actual receipt would include persons designated in Rule 4(c)(6) to receive service of process (officers, managing agents, etc.).

Subdivision (dc) is unchanged.

Committee Comments to Amendments to Rule 4 Effective October 24, 2008

Rule 4(a). Although Rule 4(a)(1) “Issuance” was not amended at this time, it is the intent of these amendments that issuance by the clerk includes electronically generated documents. Similarly, the reference in Rule 4(a)(2) to the clerk’s signature now includes an electronic signature. See Rule 30(G) of the Alabama Rules of Judicial Administration. The insertion in Rule 4(a)(3) of “accompany” in place of “attached” is a technical amendment intended to encompass both paper and electronic filing. This section has also been amended to eliminate the requirement for additional service copies when electronic filing is used. The change to Rule 4(a)(5) is required by the amendment to Rule 4(i)(2) that creates an alternative procedure for certified mail service.

Rule 4(i). Rule 4(i)(2) is amended to continue the present method of certified mail service by written request to the clerk and to add a new alternative method by which the plaintiff may initiate certified mail service with notice to the clerk. The procedure to be followed is set out in Rule 4(i)(2)(B)(ii), a new paragraph added by this amendment. This change makes it clear that if a plaintiff elects to use certified mail service it is the plaintiff’s option to use either of the alternative methods now provided. Whatever method of certified mail service is used, the return receipt must include the case number and must be addressed to the clerk of the court in which the action is pending.

Note from the reporter of decisions: The order amending Rules 4, 4.1, 4.2, 4.3, 4.4, 6(a), 7(b)(2), 17(a), 22(c), and 26(b), Alabama Rules of Civil Procedure, effective August 1, 2004, is published in that volume of Alabama Reporter that contains Alabama cases from 867 So.2d.